High Court Overturns Mondelez Leave Ruling

The High Court has ruled how paid personal/carer’s leave is to be calculated under the Fair Work Act 2009.

The High Court has overturned the decision handed down by the full Federal Court in August 2019 that ruled in favour of two employees of Cadbury’s factory in Tasmania and the Australian Manufacturing Workers’ Union (AMWU) who challenged a case brought by Cadbury’s parent company Mondelez to pay sick leave at a rate of 7.6 hours day, despite their employees working 12-hour shifts.

The Federal Court in August 2019 held that ‘day’ in the Fair Work Act refers to “the portion of a 24 hour period that would otherwise be allotted to work”. However, in the High Court’s judgement summary published today, it rejected the ‘working day’ construction and instead held that what is meant by a ‘day’ or ‘10 days’ must be calculated by reference to an employee’s ordinary hours of work.

The High Court judgement states: “One ‘day’ refers to a ‘notional day’ consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period. Because patterns of work do not always follow two-week cycles, the entitlement to ‘10 days’ of paid personal/carer’s leave can be calculated as 1/26 of an employee’s ordinary hours of work in a year.”

As a result of the decision, the Fair Work Ombudsman has updated the Fair Work Information Statement (FWIS), which employers have to give every new employee, and published a summary of the decision and what it means for you.

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